Mihail Danov

Governance Aspects of Cross-Border Eu Competition Actions: Theoretical and Practical Challenges

(2014). Governance Aspects of Cross-Border Eu Competition Actions: Theoretical and Practical Challenges. Journal of Private International Law: Vol. 10, No. 3, pp. 359-401.

EU COMPETITION LAW ENFORCEMENT: IS BRUSSELS I SUITED TO DEALING WITH ALL THE CHALLENGES?

There are arguments indicating that Brussels I could be applicable to cross-border competition law proceedings before a National Competition Authority located in one Member State and private EU competition law proceedings before another Member State court. However, an analysis of the current private international law framework appears to indicate that Brussels I is not well suited to deal with the difficulties that could arise in this context. Given the fact that, in the new proposal for a regulation on jurisdiction and the recognition and enforcement of judgments there is no indication that special jurisdictional bases for competition law actions in the successor to Brussels I are on anyone’s agenda, an option for a reform may be setting up a new and special regulation to be applicable with regard to EU competition law claims

Cross-Border Aspects of EU Competition Law Enforcement: Comprehensive Reform Needed?

Private international law has an important role to play in cross-border EU competition law actions because businesses and consumers in several countries may suffer harm caused by infringements of Articles 101 and 102 TFEU. On 21 May 2015, the CJEU rendered its judgment in the first case in which the judges were asked to opine on the way the Brussels I regime applies in private antitrust damage claims with an international element. The case exposes some of the problems of the EU model of administration of justice in cross-border competition law disputes. The aim of this paper is to engage with some competition law cases with a view to identifying the main weaknesses of the current institutional framework. It shows that, due to the specific nature of the EU competition law infringements, a level of delay appears to be common under the current institutional architecture, and as a result there are no effective remedies for many of the injured parties. It is submitted that the inability of the current regime to adequately deal with the cross-border implications of the EU competition law infringements could hamper the effectiveness of any national legislation in implementing the Directive on antitrust damage actions and the Commission Recommendation setting out common principles for collective redress proceedings. A case is made for research studies which consider how to improve the effectiveness of the current enforcement regime whilst factoring in the cross-border nature of the majority of the EU competition law infringements.

Measuring the effectiveness of the EU civil justice framework: Theoretical and methodological challenges

A number of harmonised private international law instruments appear to be the foundation of the whole EU civil justice framework, which primarily aims to provide effective remedies for litigants in cross-border cases. Given the level of diversity across the EU, a major feature of the EU legal landscape is the triangular relationship between the allocation of jurisdiction and identification of applicable law, on the one hand, and the available remedy, on the other hand. It appears that, when it comes to the administration of justice in a cross-border context within the EU, this triangular relationship encompasses the ability of the Member States’ courts to deal with cross-border disputes which may be important for the forum selection process. An EU model of administration of justice, which allows litigants to choose where to litigate, may result in some jurisdictions being promoted as dominant. This can only happen, of course, because the EU has already created free movement of judgments in large areas of commercial and family law. Once a judgment has been secured in any one EU Member State it should be enforceable in all others with little or no hindrance. However, litigants may have to consider where a judgment is to be actually enforced given that the rules on actual enforcement are not harmonised in the EU (this may be particularly significant in relation to family law disputes). The dominant jurisdictions could be attracting more cross-border cases, and thus some jurisdictions may become a venue of choice for the high value cross-border disputes. It is important to assess, on the basis of relevant empirical data, how the current EU Civil Justice framework is shaping the litigants’ strategies and whether the objectives of the EU PIL legislative instruments are effectively pursued in a cross-border context. An empirical study is underway in several Member States, with different legal traditions/heritages.

Global competition law framework: A private international law solution needed

There are a significant number of national competition law systems which prohibit anti-competitive behaviour. The cross-border nature of many antitrust/competition law infringements leaves no doubt that parallel and related competition law proceedings will arise. Competition laws enjoy public policy character, and as a result are regarded as mandatory provisions of the forum. The extra-territorial application of mandatory antitrust law provisions does suggest that different sets of competition laws may be applicable depending on where the competition law proceedings are taking place. Since there may often be a conflict of competition laws, there are complex issues which must be addressed in a global context. This article demonstrates that a private international law tool, which aims to preserve the diverse national competition law cultures, may be used as a new mode of governance in a global context. Such an instrument could/should take account of the competition laws of the countries that have legitimate interests to regulate the relevant business activities. Given the high costs for achieving harmonised competition laws in a global context, agreeing upon a private international law instrument with a view to coordinating cross-border competition law proceedings may be a more realistic objective to be pursued by the international community.

The EU Civil Justice Framework and Private Law: ‘Integration through [Private International] Law

The diverse nature of substantive private law systems across Europe has amplified the development of an EU Civil Justice system based on harmonized EU private international law (PIL) mechanisms. The authors argue that the problems of jurisdiction, choice of law and recognition and enforcement of judgments will be recurrent for courts and litigants in a cross-border context, which may adversely affect the level of litigiousness. After analysing several types of PIL cases brought before the English courts, the authors make the case that there is a need for an appropriately conducted comparative study to collect empirical evidence which explains the cross-border litigation pattern and assesses the effectiveness of the EU PIL instruments. It is concluded that devising an appropriate institutional architecture for the interpretation and application of PIL legislative instruments is key to the creation of a genuine European area of justice as there cannot be rights without appropriate remedies.

Teaching international commercial arbitration at postgraduate level – techniques for enhancing students' learning

The international commercial arbitration modules that are increasingly taught at postgraduate level at British universities seem to be quite popular among students who have not obtained their first law degrees in the UK. Whilst the seminars, which require a great deal of independent study, may be a valid mode for teaching postgraduate students who have graduated in the UK, the same may not be true for teaching postgraduate students who have obtained their first degrees abroad. The aim of the article is to identify the teaching methods that should be used, in order to foster seminar discussions and encourage the postgraduate students who have not obtained their first degrees in Britain to understand the relevant material by reading widely. The project involved the use of a number of teaching techniques by the author for a trial period (i.e., an academic year). The study clearly showed that if we want to promote a “deep approach” to learning when teaching international commercial arbitration, then we need to adopt a mix of teaching methods that considers the individual interests, needs and abilities of each individual student.